Satish vs State Of U.P.
2017 Latest Caselaw 3634 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 14
 
                                                                                    AFR
 
Case :- CRIMINAL APPEAL No. - 2391 of 2011
 

 
Appellant :- Satish
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Bharat Singh,R.P.S. Chauhan,Ram Babu Sharma,Shivaji Singh Sisodia
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I, J.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 14.04.2011 passed by the Additional Sessions Judge, Court No.9, Badaun, in Sessions Trial No.645 of 2008 State of U.P. Vs. Satish, arising out of Case Crime No.372 of 2007, under Section 304 Part-I IPC, Police Station- Wazeerganj, District- Badaun whereby the appellant Satish has been sentenced to undergo ten years rigorous imprisonment coupled with fine Rs.10,000/- under Section 304 Part-I IPC, with default stipulation for one year additional imprisonment.

Heard Sri R.P.S. Chauhan and Sri Navneet Singh, learned counsel for the appellant and Sri Pradeep Kumar, learned AGA and Sri Rajiv Kumar Rai, learned brief holder for the State and perused the record of this appeal.

Facts germane as reflected from perusal of the record and particularly from the first information report reveal that the informant Nanhey Singh, father of the deceased Km. Ravi, lodged the written report at Police Station Wazeerganj, District Badaun on 28.06.2007 at 12:05 p.m. against the accused-appellant Satish alleging therein that the accused-appellant came to the Mentha Plant run by the informant in the partnership of Sanjay Kumar (brother of accused) where the informant asked for payment of his money whereupon the accused-appellant abused the informant and was ready to fight with him. During course of scuffle/assault, the daughter of the informant intervened and asked the informant to leave the place and go to home then the accused-appellant was infuriated and he gave Lathi blow to the informant's daughter who fell down unconscious. She was being taken to Vagrain when she died on way. The incident was witnessed by co-villagers Ramesh Singh son of Tikam Singh and Bhoore Singh son of Dori Singh, apart from the other villagers. It was requested that report be lodged and appropriate action be taken. This written report was scribed by Jaiveer Singh and the same is Ext. Ka-1.

Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No.372 of 2007 under Section 304 IPC, at Police Station Wazeerganj, District Badaun, on 28.06.2007 at 12:05 p.m. Check FIR is Ext. Ka-3. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial no.20 on 28.06.2007 at 12:05 p.m. at aforesaid case crime number at Police Station Wazeerganj under aforesaid section of I.P.C. against accused-appellant. Copy of general diary is Ext. Ka-4.

Record reflects that after the case was lodged against the accused-appellant, the investigation swung into motion and the Investigating Officer Munshi Lal Rawat PW-6 proceeded to the place where the dead body of Km. Ravi was lying and prepared inquest of the deceased on 28.06.2007. It commenced at 13:30 hours. The witnesses concurred with the Investigating Officer that the dead body be sent for post mortem examination in order to ascertain real cause of death. The inquest report is Ext. Ka-6.

In the course of proceedings, relevant papers were prepared for sending the dead body for post mortem examination, which are Photonash Ext. Ka-7, specimen seal Ext. Ka-8, Challan dead body police form 13 Ext. Ka-9, letter to RI Ext. Ka-10 and letter to CMO Ext. Ka-11. Thereafter, post mortem examination on cadaver of the deceased Km. Ravi was done by Dr. R.S. Yadav, on 28.06.2007 at 6:15 p.m. in the mortuary at District Badaun wherein he noted the following ante mortem injuries:

1. An abrasion 1 cm x 1.0 cm on left side of neck, 2.0 cm below from lower jaw.

2. An abrasion 1 cm x 1.0 cm on bridge of nose.

3. Contusion 7 cm x 5.0 cm on back of scalp, 11.0 cm behind right ear.

In the opinion of the doctor, cause of death was coma as a result of ante mortem head injury. Duration was stated to be about one day. This post mortem examination report is Ext. Ka-2.

The investigating Officer also prepared site plan of the place of occurrence which is Ext. Ka-5. The Investigating Officer, apart from recording statement of various persons, came to the finding that charge sheet is liable to be filed against the accused-appellant whereupon he filed charge sheet against the accused-appellant which is Ext. Ka-12.

Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Additional Sessions Judge, Court No.9, Badaun who in turn heard both the sides on point of charge and was prima-facie satisfied with case against the accused-appellant, accordingly, framed charge under Section 304 IPC. Charge was read over and explained to the accused-appellant who abjured charge and opted for trial.

In furtherance of the proceedings the prosecution produced in all 6 witnesses. A brief sketch of witnesses is ut-infra:-

Nanhey Singh PW-1 is the informant, eyewitness of the occurrence and father of the deceased Km. Ravi, Ramesh Singh PW-2 and Bhorey Singh PW-3 are stated to be independent witnesses who turned hostile and have not supported the prosecution case. Dr. R.S. Yadav PW-4 who conducted autopsy on the cadaver of the deceased on 28.06.2007 at about 6:15 p.m, has proved post mortem examination report Ext. Ka-2. Devi Dayal the then Head Moharrir has made relevant entries in the concerned Check FIR and general diary and has proved both entries as Ext. Ka-3 and Ext. Ka-4, respectively. Munshi Lal Rawat PW-6 is the Investigating Officer. He has detailed the various steps, he took in completing the investigation and has stated to have submitted charge sheet against the accused-appellant. Except as above, no other evidence was adduced by the prosecution.

Therefore, evidence for the prosecution was closed. The statement of the accused was recorded under Section 313 Cr.P.C. wherein he has claimed his innocence and stated that he has been falsely implicated in this case on account of enmity and the fact that the informant wanted to purchase the land on which Mentha Plant was being run. The accused-appellant was having a share and he opposed the transaction, therefore, in order to coerce the situation, the accused-appellant has been falsely implicated in this case.

No evidence, whatsoever, was adduced by the defence.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 304-I IPC and sentenced the appellant to ten years rigorous imprisonment coupled with fine Rs.10,000/- under Section 304-I IPC, with default stipulation for one year additional imprisonment.

Consequently, this appeal.

Learned counsel for the appellant has succinctly submitted that in this case, the accused-appellant has not committed the crime. Fact is that the death of the deceased is accidental due to falling of some chain installed in the Mentha Plant of the informant. The first information report has been lodged by the informant at a belated stage after 18 hours of the incident for which no plausible explanation has been put forth. The version contained in the first information report varies with the description of the incident narrated by Nanhey Singh PW-1. The statement recorded by the Investigating Officer wholly proved the incident to be outcome of deliberation and guided by false motivation. The version of PW-1 being solitary version of the incident, not supported by any independent witness, is liable to be discarded at this stage.

Learned counsel for the accused-appellant has further contended that there is no independent circumstance which could involve the accused-appellant for causing assault on the deceased. The accused-appellant was not having any motive for causing any assault on the deceased. He has been made prey to the whims of the informant who in fact wanted to purchase the land of the accused-appellant on which Mentha Plant was being run.

Learned counsel for the accused-appellant has next contended that fact is that the informant himself was involved in some murder case and possibility is that he being a criminal nature, he could have involved the accused-appellant falsely in this case. All the exercise have been done by the informant PW-1 to grab the property of the accused-appellant which has been resisted by the accused-appellant. The trial court was unmindful of above substantial aspect of the case and misread into evidence and wrongly recorded finding of conviction under Section 304-I IPC and imposed harsh punishment on the accused-appellant which is not justified under facts and circumstances of the case. Therefore, the accused-appellant deserves acquittal.

Per contra, the learned AGA retorted to aforesaid arguments by submitting that distance of the police station Wazeerganj from the place of occurrence has been stated to be 12 kilometers and the incident of murder took place on 27.06.2007 around 6:00 p.m. and the daughter of the informant died on way to Vagrain, a place within police outpost was located. To presume presence of the police at the outpost is too much of thinking looking to the fact that this outpost is most of the time abandoned and not attended by the police personnel. Therefore, possibility is that the informant's daughter died on way to Vagrain and her dead body was kept near or inside the police outpost then the informant being out of sense somehow managed to get the report scribed through Jaiveer Singh. In the next morning, first information report was lodged at 12:05 p.m. which course of action cannot be said to be deliberated in order to falsely implicate the accused-appellant.

Learned AGA has further contended that to say that the death is accidental, is merely bald statement. In support of the facts and circumstances of the case, testimony of the doctor is clinching on the point that the assault could have been caused by Lathi blow, possibility of use of Lathi in causing death has not been refuted by the doctor. The sole testimony of the doctor witness is base of conviction. The quality of testimony is to be adjudged and quantity is to be discarded. The Investigating Officer has also collected worthy material and has rightly filed charge sheet against the accused-appellant and the trial court was justified in recording conviction against the accused-appellant under Section 304-I IPC.

Also considered the above rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge under Section 304-I IPC beyond reasonable doubt and has sentenced condignly.

Admittedly, there is only one witness of the incident who is none other than the informant himself Nanhey Singh. The informant has narrated and described the incident in detail that on the day of incident, it was around 6:00 p.m., when he went to take money at Mentha Plant and asked for payment from accused-appellant Satish then Satish abused him and was adamant to fight. The informant's daughter Km. Ravi was also standing nearby. In the meanwhile, the informant's daughter said to the informant to leave the place when the accused-appellant asked the girl that she cannot do so and gave Lathi blow to her which rendered her unconscious. The informant while taking her to Vagrain outpost, she succumbed to her injuries on way.

It has been stated that the apart from PW-1, the incident was witnessed by co-villagers namely Ramesh and Bhurey. Though their testimony was clinching to the point that the murder of the informant's daughter was committed by the accused, but they were not present at the scene of occurrence and they did not witness the incident. It has been testified by PW-1 that the report of the incident was scribed by Jaiveer Singh and it was signed by the informant and was handed over to Diwanji and the case was registered against the accused-appellant.

The argument has been advanced on behalf of the accused-appellant to the extent that the first information report was lodged by the informant against the accused-appellant at inordinate delay. In this context, facts and circumstances of the case profusely point out that the incident took place around 6:00 p.m. and no worthy question has been asked from the informant as to on what time he reached at Vagrain outpost. Therefore, it cannot be said that after the incident has been caused there was delay in lodging the FIR. Taking away of the daughter of the informant and reaching at the police outpost Vagrain could have taken some time and night must have fallen by that time then the police station which is located at a distance of about 12 kilometers cannot be accessed by the informant. Informant's mental condition was also diminishing as per his testimony.

The point is that how the first information report was delayed up to till noon of 28.06.2007 then it is obvious that as per testimony of PW-1, he lost his senses and was embarrassed to a great extent due to which his mind was not functioning properly. This can be construed to be an admitted fact which remained unchallenged. It may have occasioned some reasonable time in lodging the first information report. Therefore, submission of the learned counsel for the accused-appellant that the first information report has been lodged at inordinate delay cannot be accepted on its face value.

Insofar as meritorial aspect of this case is concerned, a suggestion has been made that death of the deceased Km. Ravi was result of falling of the chain installed in the Mentha Plant but there is no attendant circumstance or evidence on record which could whisper about any such occurrence/incident, resulting into death of the deceased Km. Ravi.

Apart from aberration so recorded in the statement of PW-1 under Section 161 Cr.P.C. there is no substantial lacking on merits of the case. It may be that PW-1 has asserted on certain point that in fact Lathi blow was tried to be caused on his person. It means he exaggerated on this point but it obviously the Lathi blow then caused harm to his daughter. But this exaggeration would not pollute him otherwise innocuous account of occurrence. It may be that the accused-appellant himself of his own free will gave Lathi blow to the daughter of the informant when she asked the informant to leave the place. In both the situation, causing of assault on the daughter of the informant stands satisfactorily proved and it cannot be doubted. This is crux and core of the incident that assault was caused by the accused-appellant on the daughter of the informant Nanhey Singh. It does not matter whether any prior attempt was made to cause assault on the informant or not.

In this way, supporting corroboration can be gathered from testimony of Dr. R.S. Yadav who has testified to the aforesaid ante mortem three injuries that the assault could have been caused around 6:00 p.m. by Lathi blow. The doctor witness has been cross-examined by defence witness. Specific question was put to him. He has clarified that all the three injuries could not have been caused by Lathi blow. It is admitted fact that injury no.1 is in shape and form of an abrasion 1 cm x 1.0 cm on left side of neck, 2.0 cm below from lower jaw. Injury no.2 is an abrasion 1 cm x 1.0 cm on bridge of nose. Thus, two injuries do not tally with third injury which is in measurement of 7 cm x 5.0 cm on back of scalp, 11.0 cm behind right ear. Therefore, one aspect of the incident is evident from fact that as soon as assault was caused, the deceased Km. Ravi was rendered unconscious. The doctor has reported the cause of death due to ante mortem head injury. Fact of this head injury remains unassailed and this was fatal blow which as per testimony of PW-1 was stated to have been caused by Lathi. But all the three injuries cannot be caused by Lathi blow.

Insofar as point for false implication of the accused-appellant is concerned, it is obvious that apart from mere suggestion and submission, there is no any other attendant circumstance and evidence on record which could give force to such suggestion or argument that only because the informant wanted to purchase share of the land of the accused-appellant that he falsely implicated the accused-appellant in this case leaving the real culprit scotfree. No worthy material has emerged from cross-examination of PW-1, which could throw any doubt on manner and style of causing assault on the deceased Km. Ravi which resulted into her death. In this way, the Investigating Officer has also collected worthy material.

It is admitted that two hostile witnesses PW-2 and PW-3 though have not supported the case of the prosecution but they have affirmed fact that accidental death was caused to the deceased. In this way, the trial court was fully conscious of testimony of the prosecution witnesses and facts and circumstances of the case and it rightly analyzed and scrutinized the same and based its finding on material on record, the same cannot be said to be either wanting on merits or was erroneous and illegal.

But insofar as authenticity of the entire facts and circumstances is concerned, it can be well analyzed that the incident was result of sudden provocation which started only when the informant asked for payment of money from the accused-appellant which fact infuriated the accused-appellant and he tried to give Lathi blow. There is not a single testimony that Lathi blow initially aimed at the informant ultimately resulting in Lathi blow on the deceased but it was not repeated by the accused-appellant and no second assault by Lathi was ever attempted by the accused-appellant. This particular factual aspect shows lack of intention on the part of the accused-appellant to cause death of either the informant or his daughter Km. Ravi. This way, intentional part insofar as causing the assault is concerned, appears to have been missing which factual aspect has been overlooked by the trial court and it wrongly recorded conviction of the accused-appellant under Part-I of Section 304 IPC, because the assault in question was never intended but the very assault resulted into death. Here knowledge of natural outcome of the very act is overwhelming. Part-II of Section 304 IPC stipulates presence of knowledge of the consequence of the act done.

It may be noted that an ordinary prudent man would be presumed to foresee natural consequences of his act. An ordinary man will always be acting reasonably and must have reason to believe natural outcome of his act. Therefore, every person is presumed to have sufficient reason to believe towards natural outcome of his act. This way knowledge of consequence would be inferred. It may be both penal and exculpatory, as the case may be. Consequently, charge under Section 304 IPC was rightly sustained as proved beyond reasonable doubt against the accused-appellant by the trial court. But here in this case at hand, the very act of causing assault which resulted into death of Km. Ravi will be covered under Part-II of Section 304 IPC instead of under Part-I of Section 304 IPC. Accordingly, conviction recorded under Section 304 Part-I IPC is liable to be converted to one under Section 304 Part-II IPC.

Now the court is concerned with the sentencing point once the conviction stands modified confined to Part-II of Section 304 IPC. I have been persuaded on behalf of the accused-appellant that offence at the most can be said to have been caused in a heat of passion and that circumstances must be taken into account while awarding sentence because the accused-appellant had no intent to commit the offence, if the accused-appellant did not intend to kill then in this particular case, he can be imputed only with knowledge of reasonable consequence of his act. It is also admitted fact that Lathi blow given by the accused-appellant which caused death of the deceased Km. Ravi was not repeated. The accused did not further overt act either against the informant or against the victim to aggravate the magnitude of offence. This part of gesture during course of commission of offence shows actual mind of the accused-appellant that he never intended death as consequence flowing from the offence.

In view of above analysis, I upon after careful deliberation and after considering factual background of this case and status of the accused-appellant qua commission of offence and fact that he had no intent to commit offence, but single Lathi blow was given to the informant's daughter which resulted into her death, consider it just and proper in the interest of justice that the accused-appellant may be sentenced to the period already undergone by him during course of trial and during post conviction period i.e. 6 years, 6 months and 13 days, coupled with fine Rs.10,000/- and in case of default in payment of fine, the accused-appellant would have to suffer further imprisonment for one month. Accordingly, sentence awarded by the trial court is hereby modified to that extent terms aforesaid.

Accordingly, the instant appeal is allowed, partly in aforesaid terms.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Order Date :- 25.08.2017

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